Indigenous law – IND203X POSSIBLE EXAM QUESTIONS

Indigenous law – IND203X POSSIBLE EXAM QUESTIONS 1. Explain those factors that encourage the observance of Indigenous law. (10) The vast majority of people in any indigenous community generally observe most rules, including legal rules, faithfully every day without being forced to do so. As far as indigenous law is concerned, the following factors may explain why people observe these rules: • The religious or sacred element of the law. The rules for living, and thus also the law, are believed to come from the ancestors themselves and are protected by the ancestral spirits. It is the ancestors who make sure that these rules are observed. Any disregard of, or deviation from, may lead to punishment by the ancestral spirits. Misfortunes such as illness, drought, hail, floods and heat waves are often, therefore, even today, experienced and interpreted as forms of supernatural punishment. • Public opinion, particularly sensitivity about what other people may think, or say, about one's behaviour. • The knowledge that, if a person is harmed, that person will endeavour to get compensation or take measures to protect himself/herself. • The fact that everybody in the community has a broad knowledge of the law because of the general participation in the legal process, and the fact that the law is handed down orally from one generation to another. • Fear of punishment, especially punishment of supernatural origin, when the conduct concerned is in conflict with accepted legal principles. • The influence of indigenous leaders in the community, who are living representatives of the ancestors and who are responsible for making sure that the law is observed. 2. Discuss the unspecialised nature of indigenous law, with specific reference to criminal and procedural law. (25) (a) GROUP ORIENTATION One of the characteristics of indigenous law which is strongly visible in both indigenous criminal and procedural law is group orientation. Unspecialised legal systems emphasise the group rather than the individual. The individual functions entirely within the context of the group. As far as criminal law is concerned, a whole family group can be punished for the crime of one of it's members. In the case of sorcery, for instance, the whole family might be banished and even killed. Note that fines have to be paid by the group. (b) CATEGORISATION The whole idea of a sharp distinction between categories, institutions and concepts is foreign to indigenous law. There is no distinction between civil and criminal cases and nor are there separate court procedures for these cases. (c) INFORMAL Unspecialised legal systems are also characterised by informality. There is a great deal of flexibility when it comes to the application of legal rules. For example: an important factor in legal life is the process of constant consultation. A case may not be taken to court before the parties concerned and their families discuss the matter. In court there are also court counsellors who participate in the proceedings throughout, by questioning, by giving information and, eventually, by giving their views on the matter. The court's decision is often based on the consensus of these opinion's. (d) LEGAL APPROACH: CONCRETE RATHER THAN ABSTRACT Unspecialised legal systems follow a more concrete, real and 'visible' approach, compared with that of specialised legal systems (which tend to be more abstract in nature). When a person is charged with a crime (for instance), to prove that the accused did indeed commit the crime, concrete evidence would be presented to the court (i.e. evidence that incriminated the accused). In the case of stock theft, for example, a hide found in his possession would be regarded as concrete evidence that the accused did indeed steal and slaughter livestock. (e) THE RELIGIOUS ELEMENT The strong religious element that is present in indigenous law is based on the belief that the law originated with the ancestors. Disregard of the law is punished by the ancestors, not so much because disregard of the law is considered sinful, but because it is regarded as being disrespectful of the ancestors. Reconciliation between the community and the ancestors is usually accomplished by slaughtering an animal and having a communal meal. If the community plans to carry out certain important juristic actions, the blessing of the ancestors is obtained by means of special rites. 3. Evaluate the following statements: (a) In a traditional court evidence is given under oath. (5) The statement is incorrect. In a traditional court, evidence is not given under oath. Perjury (wilfully giving false evidence under oath) is therefore unknown. No action is taken against a party or a witness who tells lies; if they do tell lies, this merely harms their case. (b) A traditional leader is empowered to punish anyone. (5) This statement is incorrect. A traditional leader is not empowered to punish anyone. He has power to punish only black persons residing under his jurisdiction. (c) Institutional action excludes unlawfulness. (5) This statement is correct. In indigenous law there are certain circumstances where what looks like an unlawful act is, in fact, still considered lawful. In indigenous law, institutional action is one ground for the justification of an unlawful act. This is a cultural institution recognised as such. Thus injuries sustained by young men during a stick fight would not constitute assault. The same applies to injuries sustained in the circumcision process that forms part of a cultural initiation ceremony. 4. Discuss the execution of a sentence by an indigenous court. (10) Unless the judgement of the indigenous court is taken on appeal, it must be executed. Execution of the judgement or sentence must take place as soon as judgement is passed. The fine (in whatever